Muslim law in India tolerates polygamy but does not encourage it: Gujarat High Court

The Gujarat High Court has observed that under the Muslim personal law, no fundamental right is vested upon a husband to compel his wife to share his consortium with another woman [Jinnat Fatma Vajirabhai Ami v. Nishat Alimadbhai Polra].

. A Division Bench of Justices JB Pardiwala and Niral R Mehta also observed that Muslim law, as enforced in India, has considered polygamy as an institution to be tolerated but not encouraged.

"The Muslim law, as enforced in India, has considered polygamy as an institution to be tolerated but not encouraged and has not conferred upon the husband any fundamental right to compel his wife to share his consortium with another woman in all circumstances," the Court said.

The observations were made while hearing an appeal moved by a wife against an order of the family court which had directed the wife to go back to her matrimonial home and perform marital obligations alongside the husband.

While overturning the family court's order, the High Court noted that in a suit of restitution of conjugal rights moved by a husband, if a wife has refused to cohabit, then she cannot be forced to cohabit by a decree of court.

"The object behind Order XXI Rule 32(1) and (3) CPC is that no person can force a female or his wife to cohabit and establish conjugal rights . If the wife refuse to cohabit, in such case, she cannot be forced by a decree in a suit to establish conjugal rights," the Court noted.

By way of background, the parties, who are Muslims had their Nikah performed in May 2010.

The appellant-wife took up a government job as a staff nurse at the Thara Village Referral Hospital. Having regard to the nature of her duties, she was required to stay at the Thara Village Referral Hospital. It appears that in April 2017, the appellant-wife got transferred to the Palanpur Civil Hospital. The appellant-wife, while residing at Kanodar with her husband and in-laws, used to travel to Palanpur for work.

It was the case of the husband that his wife left the matrimonial home along with their minor son on July 20, 2017 without any lawful ground and further and without informing anyone.

Several attempts were made to persuade her to return to her matrimonial home but without success due to which he instituted a suit in the family court under Section 282 of the Mohammedan Law for the restitution of conjugal rights.

The Banaskanta Family Court allowed the suit of the husband and directed the wife to go back to her matrimonial home and perform conjugal obligations.

The wife appealed against the same before the High Court.

Through an appeal before the High Court, the wife challenged the this order, questioning its legality and validity. It was the case of the wife that she was being pressured to migrate and settle in Australia, considering that the appellant is a qualified nurse and she may be able to secure a good job there. As the wife was dead against such an idea, she declined to leave her job at Palanpur.

The Court noted that when it comes to the decision in a suit of restitution of conjugal rights, it does not entirely depend upon the right of the husband, and the family court should also consider whether it would make it inequitable for it to compel the wife to live with her husband.

The Court highlighted that a marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.

However, the Bench noted that a decree for the specific performance of a contract (of restitution of conjugal rights) is an equitable relief and it is within the discretion of the Court to grant or refuse it in accordance with principles of equity.

"In a suit for restitution of conjugal rights by a Muslim husband against his wife, if the Court after a review of the evidence feels that the circumstances reveal that the husband has been guilty of unnecessary harassment caused to his wife or of such conduct as to make it inequitable for the Court to compel his wife to live with him, it will refuse the relief."

Importantly, while dealing with the case, the Bench noted that Muslim Law enforced in India does not encourage polygamy as an institution rather only tolerates it and therefore, the first wife may decline to live with her husband on the ground that Muslim law permits the polygamy but does not encourage it.

Reliance was placed on a recent Delhi High Court decision in which the Court had observed that a uniform civil code (UCC) should not remain a mere hope in the Constitution.

The Delhi High Court while expressing regret over conflicts in society due to difference in various personal laws has observed that:

"...in modern Indian society, which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating. The youth of India belonging to various communities, tribes, castes or religions who solemnize their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce."

In view of the above, the Gujarat High Court allowed the wife's appeal and set aside the order of the Family Court.

Advocate Chetan K Pandya appeared for the appellant-wife. Advocate Kewal J Shah appeared for the respondent-husband.

. [Read Judgment]

Muslim law in India tolerates polygamy but does not encourage it: Gujarat High Court

Anadi Tiwari

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